that law of the third centur)’ was quite sinipU' the extended interpretation of the pro\ ision on aijiui pluvia arcenda (warding off rain water) of the XH Fables of the mid-fifth century b.c. What was rain water? Warding off did not include diminishing. Whv was no remedv gi\ en against a neighbor who diverted or used up too much water? What work on a neighbor's land would not make him liable? Past history decided.’ I’he notorious Fnglish distinction between libel and slander-unknown in Scotland or in continental Europewas the result of long dead history.' d'he bizarre Rule against Perpetuities in its classical 20th century form in l?ngland and the United States was the unplanned result of a long development that culminated in the modern doctrine that began with The Duke of orfolk's G/j'c {i6Ki).^ The tx pical matrimonial property law of the western states of the USA derit es from that of (Ailifornia enshrined in its constitution of 1849, and this law reflects that of the local Spanish settlers and their descendants which was that of Spain transported to the New World. Fhis in its turn derives from a law of the X’isigothic king Reccisvind which appears in the Fucro^7uzgo o\ 69;?, which came to have some general acceptance throughout Spain after the Reconquista.' Similar important examples are found througlKiut modern western private law. W’e make a fundamental mistake when we helie\ e that law can he rationally explained in terms of the society in which it operates. And we should not restrict our gaze to rules of law. d'he same applies to legal structures. 'Fhe Roman elementary first-year students' textbook of the mid-second century, Gains' h/stitutes, pro\ ided the o\erall structure of justinian's Institutes in sixth-century 2 See Watson, Evolution, pp. i38ff. 3 For a short account of the distinctions, complexities, and inanities see Watson, Society, pp. 6iff. 4 See A.W. Brian Simpson, Leading Cases in the Common Law(Oxford, 1995) p. 77. 5 See e.g., Watson, Society, pp. i07ff. 166
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